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Exhibit 10.3
AMENDMENT 2
TO
OEM SOFTWARE LICENSING AND DISTRIBUTION AGREEMENT NO. OES-NOVA96001
BETWEEN
XXXXXX CORPORATION AND NOVADIGM, INCORPORATED
This Amendment 2 ("Amendment 2") is hereby made a part of and incorporates the
terms of the OEM Software Licensing and Distribution Agreement Xx. XXX-XXXX00000
between Xxxxxx and Novadigm ("Agreement") as of March 31, 1997 ("Effective
Date").
1. In Section 2.9.2:
Before the final punctuation, insert the following punctuation and
words, "or (4) there is a Change in Control ("Change in Control" shall
be deemed to have occurred if (i) there shall be consummated (a) any
consolidation or merger of Novadigm in which Novadigm is not the
continuing or surviving corporation, or pursuant to which shares of
Novadigm's common stock would be converted into cash, securities or
other property, other than a merger of Novadigm in which the holders of
Novadigm's common stock immediately prior to the Merger have
substantially the same proportionate ownership of common stock of the
surviving corporation immediately after the merger, or (b) any sale,
lease, exchange, or other transfer (in one transaction or a series of
related transactions) of all or substantially all the assets of
Novadigm, or (ii) the stockholders of Novadigm shall approve any plan
or proposal for the liquidation or dissolution of Novadigm) of Novadigm
and, if after a Change in Control of Novadigm, the entity which then
controls the Licensed Programs falls to provide at least the same level
and quality of support for the Licensed Programs as defined in
paragraphs 2.4, 2.5, 2.6, 2.7 and 2.8 of the Agreement before the Change
in Control of Novadigm."
2. Insert new Section 13.9:
"In the event there is a Change in Control of Novadigm and only if
Xxxxxx notifies Novadigm no less than thirty (30) days in advance of the
Change in Control of Novadigm of Xxxxxx'x intent to terminate the
Agreement as a result of the Change in Control of Novadigm, then Xxxxxx
shall, at its sole option, have the right to recover any and all Prepaid
Royalty credits outstanding as of the date of the Change in Control of
Novadigm so long as the Prepaid Royalty credits being recovered were
outstanding as of March 31, 1997."
3. In Attachment IV, Section 1.2 delete the first sentence and insert the
following:
"As of the Effective Date of Amendment 2, Xxxxxx exercises its option to
renew for Year 3 of the Agreement by agreeing to pay Novadigm two
million dollars ($2,000,000) in Licensed Program royalty revenues in the
form of Prepaid Royalties in accordance with the Royalty Payment Dates
Identified in Attachment IV, Section 1.5."
4. In Attachment IV, Section 1.5 change the Amount in Year 3 to "$2 Million"
and delete everything in Section 1.5 thereafter.
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5. In Attachment IV insert a new Section 1.6 as follows:
"Effective April 1, 1997, any balance of Prepaid Royalty credits
outstanding as of April 1, 1997 will be debited by royalties due on
future sublicenses for Licensed Programs by multiplying by [*]
[*] the dollar amount of any royalties due Novadigm which would, under
the Agreement or any existing Amendments to the Agreement, be used to
calculate a debit to Prepaid Royalty credits. The remaining [*]
[*] of such royalties will be paid to Novadigm outside of the
Prepaid Royalty credits and in accordance with the terms of the
Agreement."
6. In Attachment IV insert a new Section 1.7 as follows:
"On March 31, 1998, the Year 4 Accrual Date, if Xxxxxx has not provided
Novadigm a total of at least two million dollars ($2,000,000) of
royalties (calculated by adding (i) all royalties paid to Novadigm for
sublicenses executed within the twelve (12) month period ending March
31, 1998 except for those royalties for sublicenses executed during the
same twelve month period used to debit the Prepaid Royalty credits and
(ii) new additions to Prepaid Royalty credits) for the twelve month
period ending March 31, 1998, then Novadigm shall have the right to
terminate the Agreement.
On March 31, 1999, the Year 5 Accrual Date, if Xxxxxx has not provided
Novadigm a total of at least three million dollars ($3,000,000) of
royalties (calculated by adding (i) all royalties paid to Novadigm for
sublicenses executed within the twelve (12) month period ending March
31, 1999 except for those royalties for sublicenses executed during the
same twelve month period used to debit the Prepaid Royalty credits and
(ii) new additions to Prepaid Royalty credits) for the twelve month
period ending March 31, 1999, then Novadigm shall have the right to
terminate the Agreement.
On March 31, 2000, the Year 6 Accrual Date, if Xxxxxx has not provided
Novadigm a total of at least three million dollars ($3,000,000) of
royalties (calculated by adding (i) all royalties paid to Novadigm for
sublicenses executed within the twelve (12) month period ending March
31, 2000 except for those royalties for sublicenses executed during the
same twelve month period used to debit the Prepaid Royalty credits and
(ii) new additions to Prepaid Royalty credits) for the twelve month
period ending March 31, 2000, then Novadigm shall have the right to
terminate the Agreement."
7. Add to the end of Section 5.2.2:
"For any Prepaid Royalty credits which remain unused at the end of the
included Level 3 support period after April 1, 1997, Xxxxxx will pay to
Novadigm an annual maintenance fee equal to 3.75% of the remaining
Prepaid Royalty credits, for which such Level 3 Support has expired."
8. Add to Attachment I:
"5) Novadigm hereby grants to Xxxxxx, while the Agreement is in effect,
a limited, nontransferable right to license, reproduce and sublicense
solely to Sublicensees in the Customer Territory for Stand-alone EDM as
defined in Attachment VII of the Agreement and grant the right to
Xxxxxx'x Distributors to reproduce and sublicense solely to Sublicensees
in the Customer Territory for Stand-alone EDM as defined in
[*] CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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Attachment VII of the Agreement, for installation and use by
such Sublicensees, Novadigm's "EDM for the Internet" if and when
it is Generally Available to Novadigm's Direct Sales Channel."
9. In Attachment IV, Section 3, after "Integrated Solutions Royalty Rate
[*]" insert:
" "EDM for the Internet" Royalty Rate [*]"
Xxxxxx acknowledges that Novadigm's "EDM for the Internet" is not currently
available, and agrees that the availability of such will not affect Xxxxxx'x
payment obligation of $2,000,000 in Paragraphs 3 and 4 of this Amendment 2.
10. In Attachment I, delete 2 (a) and replace in its entirety with
new 2(a):
"Xxxxxx will have the right to sublicense all EDM Applications
and Adapters for all Licensed Programs for which Xxxxxx has
sublicensing rights, if and when made Generally Available to
Novadigm's Direct Sales Channels and subject to Section 5.2.1."
11. In Amendment I to the Agreement, delete 7(a) in its entirety.
All other terms and conditions of the Agreement remain in effect.
For Xxxxxx Corporation For Novadigm Inc.
Accepted and agreed to by: Accepted and agreed to by:
/s/ XXXXXXX XXXXXXXXX /s/ XXXXXX XXXXXXXX
----------------------------------- -----------------------------------
Name: Xxxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxxx
Title: Vice President and General Title: Executive Vice
Manager President & COO
A + Software Group
Date: 3/31/97 Date: 3/31/97
[*] CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
